Probate is the system you go through if you are handling the estate of someone who has died. Someone has to deal with the estate by collecting in all the money, paying any debts and distributing what is left to those who are entitled to it.
70% of applications for probate are made through a solicitor, notary or barrister.
Probate is the court’s authority given to a person or persons to administer the estate and the document issued by the Probate Service confirming this is called a Grant of Administration. The estate may be made up of
• money – cash and money held in a bank or building society or paid out on a life insurance policy.
• money owed to the person who has died
• property e.g. their home
• personal possessions e.g. their car or jewellery
• debts – if the person who died owes money, this will be paid from the estate. If there is not enough money in the estate to pay the debts, their creditors cannot recover the amount still owed from anyone else, including that person’s surviving relatives. If the debt is a joint one, for example, an overdraft on a joint account, the debt can be recovered from the surviving person. Someone who has lived with a deceased person may be liable for debts relating to the property such as council tax.
GRANT OF REPRESENTATION
Probate gives you the legal right to distribute the estate according to the deceased’s wishes. If the deceased leaves a will, it usually names one or more ‘executors’ who can apply for the grant of probate. If he or she doesn’t want to act, someone else named in the will can apply. This person is called ‘the administrator’ and they apply for a grant of ‘letters of administration with will’.
If there is no will, a blood relative can apply for a grant of ‘letters of administration’. This is based on a strict next of kin order of priority as defined in the ‘rules of intestacy’. He or she is also called the ‘administrator’. Letters of administration will also be applied for where the will is not valid or there are no executors named in the will.
The catch-all term for a ‘grant of probate’, ‘letters of administration with will’ or ‘letters of administration’ is a grant of ‘representation’. The catch-all term for an ‘executor’ or ‘administrator’ is ‘personal representative’.
WHERE PROBATE OR LETTERS OF ADMINISTRATION ARE NOT REQUIRED
Probate or letters of administration may not be required where
• the estate is just made up of cash and personal possessions and doesn’t include land, property or shares
• all the property in the estate is owned as beneficial joint tenants in which case the property automatically becomes wholly owned by the other owner
• there was a joint bank account
• the amount of money is small
Some banks and financial institutions may insist on a grant before giving access to the deceased’s accounts even if they contain only a small amount of money.
It is legal to deal with probate without a solicitor but if a solicitor is used the legal fees will usually be paid from the estate.
1. Check if the deceased has left a will, to determine who can sort out the estate. If no executor is named in the will or none of the named executors are willing or able to apply, contact the Probate Registry who will explain what to do.
2. Apply for a ‘grant of representation’ which gives the person the legal right to access things like the deceased’s bank account. This involves paying a fee and completing a probate application form and an Inheritance Tax form which submits details of the value of the estate. Having sent off the application, you must swear an oath at the local probate office promising that the information provided by you is true to the best of your knowledge. Having been issued with the grant, you can send copies to relevant organisations e.g. the person’s bank which should then release the assets.
3. Pay Inheritance Tax if the estate is worth over a certain figure (£325000 in 2013). Any gifts worth more than £3000 made in the seven years before the death are subject to the tax. Money put into trust by the deceased may also be liable for tax. The tax is due six months after the end of the month in which the deceased died. In some cases where assets may take some time to sell, the tax can be paid by installments once a year over ten years. If the Inheritance tax is not paid in full by the due date, HM Revenue and Customs will charge interest on the amount outstanding. Penalty charges may also accrue. It also charges interest if the tax is paid by annual installments.
4. Collect the assets e.g. money from the sale of the deceased property, savings accounts and shares
5. Pay any debts e.g. unpaid utility bills.
6. Distribute the estate – property, money or possessions to the people who are entitled to them, ‘the beneficiaries’.
7. Prepare the estate accounts which must be approved and signed by both you and the main beneficiaries.
It is not unusual for the whole process to take up to a year, sometimes longer if things are not straightforward. The estate cannot be dealt with until all claims to it have been received. Individuals have 6 months from the date when probate was granted to make claims against the estate.
WHERE A PERSON DIES WITHOUT MAKING A WILL
Where a person dies without leaving a valid will their property must be shared out according to certain rules, called the ‘rules of intestacy’. The person who dies without leaving a will is called an ‘intestate person’.
Only married or civil partners and some other close relatives can inherit under the rules of intestacy. Married or civil partners can only inherit if they are actually married or in a civil partnership at the time of death. If they have been divorced or the civil partnership has been legally ended, they cannot inherit. The partner of the person who has died who was not married to them is not automatically entitled to get any of the estate. They should seek legal advice about their rights. However partners who have separated informally can still inherit.
If someone makes a will but it is not legally valid, the rules of intestacy decide how the estate will be shared out, not the wishes expressed in the will.
SURVIVING CHILDREN, GRANDCHILDREN OR GREAT GRANDCHILDREN
If the person who has died has left surviving children, grandchildren or great grandchildren and the estate is valued at more than £250000 (2013), the partner will inherit:
• all the personal property and belongings of the person who has died
• the first £250000 of the estate, and
• a life interest in half of the remaining estate. The capital sum cannot be touched.
ESTATE WORTH OVER £450000
If the estate is worth more than £450000 and there are no surviving children, grandchildren or great grandchildren, but there are surviving parents, the partner will inherit
• all the personal property and belongings of the person who has died and
• the first £450000 of the estate with interest from the date of death
• one-half of the remaining estate
The same inheritance occurs where there are no surviving children, grandchildren, great-grandchildren or parents, but there are surviving brothers, sisters, nephews or nieces.
Couples may jointly own their home either as beneficial joint tenants or tenants in common. If the partners were beneficial joint tenants at the time of the death, the surviving partner will automatically inherit the other partner’s share of the property. However if the partners are tenants in common, the surviving partner does not automatically inherit the other person’s share.
Couples may also have joint bank or building society accounts. If one dies, the other partner will automatically inherit the whole of the money.
Property and money that the surviving partner inherits does not count as part of the estate when it is being valued for intestacy rules.